US Supreme Court and Crisis of Democracy

By Uchenna Ekwo

Unknown to many admirers of the United States is the fact that the country’s democracy faces unprecedented crisis, gridlock, and stalemate. Nothing exemplifies the venomous division and toxicity in the politics of the country than the vitriolic utterances and intransigence of political leaders following the passing of US Supreme Court Justice, Antonin Scalia last week. As a country that prides itself as a nation of laws, Americans turn over more of their decisions, disputes and issues to courts and judges than any other country in the world. Consequently, America faces a dilemma: upholding her abiding faith in the judiciary and achieving the goal of depoliticizing the courts and thereby minimizing court’s undue influence on the health of its democracy. How can non-majoritarian institutions – the Judiciary, have such a grip on the democracy of the most powerful and richest country of contemporary times?
United States is evenly divided ideologically – Conservatives and Progressives, with the two dominant political parties – Republicans and Democrats holding ideological flags of conservatives and progressives respectively. For decades, the Supreme Court made up of nine justices remained divided along ideological lines with the conservative justices dominating for the past half a century. Many of the court’s decisions especially on cultural issues have often ended on 5-4 decisions along ideological prisms. In other words, the interpretation of law in the US is often seen with ideological lens. What is constitutional depends on the ideology of the justices. For example, the Supreme Court in 2001 dominated by conservative justices awarded the controversial presidential election to George W. Bush of the Republican Party even though Vice President Al Gore won 500,000 more popular votes than Bush. That Supreme Court’s intervention that led to the stoppage of the recount of the votes in Florida probably sowed the seeds of modern day intransigence and palpable division that derail the country’s democracy. It is against this background that the sudden death of Justice Scalia, a prominent conservative on the apex court, is seen as game changer in the ideological balance of the court. With the court evenly split into 4 conservative and 4 liberal justices, any decision that is tied will be decided by the opinion of the lower court. So the stakes couldn’t be higher to replace the late Justice Scalia by a Democratic President who is most likely going to nominate a candidate that sees the law with a progressive lens.
It is therefore not surprising that Republicans in the Senate and Republican presidential candidates have all opposed the nomination of a replacement to Scalia- the conservative legal icon. Their argument is that such a responsibility should be left for the next president that will be elected in November and sworn in January. “The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new President,” says Republican Senate Majority leader, Mitch McConnell, the same man who as minority leader said his top legislative priority was to make President Obama a one-term president. As the whole world knows by now, McConnell and his Republican obstructionists failed to stop Obama’s reelection in 2012 when President Obama defeated his Republican challenger by five million votes. Therefore, the argument about the voters weighing on the nomination does not hold water as the electorate spoke loudly in 2012 when it renewed Obama’s mandate as Commander-in-Chief. Also, should Obama bow to the demands of Republicans and defer the nomination of Scalia’s replacement until the next president is sworn-in, what will the country do if the November election ends in a stalemate like the Bush-Gore electoral impasse of 2000?
The reality is that the petulant and recalcitrant Congressional Republicans are unrepentant about their refusal to accept the legitimacy of an Obama presidency. The battle for the replacement of a deceased jurist is once more another time to display their disdain for the president Obama. This is time; they are poised to end Obama’s second tenure in three years by blocking him from performing the duties of president that is clearly stated in Article II Section 2 of the US Constitution: “the President of the United States nominates justices to the Supreme Court, with the advice and consent of the Senate.” The Republican argument that appointing a Supreme Court justice in an election year is unconscionable is not supported by history.
President William Taft (a Republican), President Woodrow Wilson (a Democrat), and President Herbert Hoover (a Republican) nominated Supreme Court Justices in election years of 1912, 1916, and 1932 respectively. Even as recent as 1988, President Ronald Reagan (a Republican) nominated Justice Anthony Kennedy to fill the vacancy created by the retirement of Louis Powell.
So, what is different this time? Almost all Republican lawmakers especially the Senate Majority leader Senator McConnell loathe Obama They are probably angry at his style of governance and yes a tinge of racism. So they would wish to delegitimize his presidency at any opportunity and cannot stand Obama making a third Supreme Court pick in his tenure as the first American President with African blood.
The surprising thing about the debate over nominating a judge in an election year is the hypocrisy that goes with it. The debate ignores the fact that the same Republicans who claim to be custodians of the constitution are now routing for the violation of the same constitution. The Constitution requires the president to nominate justices of the Supreme Court and it is the Senate’s duty to ratify the nomination. Senate Republicans took an oath just like Senate Democrats and the president did. If Senate Republicans kept their pledge to block Obama’s pick, it would amount to abandoning the duties they swore to uphold and constitute a threat to both the Constitution and America’s democracy itself. It would also prove that all the Republican talk about loving the Constitution is empty talk and lip service.
It is common knowledge that the late Justice Scalia was considered a champion of so-called originalism – the theory that tries to interpret the intentions of those who drafted the US Constitution. In other words, he did not believe in a constitution being a living document like other eminent jurists including the British jurist Lord Denning. He derided the very idea of a living Constitution and deplored the tendency among some judges who ignore the text and original understanding of the Constitution.
This is why the decision of Republican leaders to obstruct the confirmation of Scalia’s replacement is not only extreme but also fuels the perception that Republicans probably depend on the apex court to achieve their conservative values that the party cannot win through the ballot box. A greater percentage of American electorate seems to disagree more often with the views of the extreme right of the political spectrum. Several polls suggest that Americans are against the Republican Party on such issues as women’s reproductive rights, immigration reform, and climate change. What Republicans cannot achieve in the ballot box, they hope to achieve through judicial activism by radical conservative judges like the departed Scalia who is popular for his unabashed conservative view of the constitution. In fact, the looming influence of the Supreme Court constitutes the paradox of American politics. Public debate about courts and law is usually consumed by complaints about judicial activism. Clearly, most Americans denounce what is phrased as “legislating from the bench” – the tendency for the courts to interpret legislation and thereby impose court-made-laws on the populace. In spite of the cyclic and essentially meaningless debates about judicial restraint, the country is unable to resolve the now decades-long expansion of judicial and executive power responsible for the fractured political and electoral process that have contributed significantly to an American crisis of democracy.
Given Scalia’s perspective of the constitution, it seems that the best tribute Republicans and Conservatives can pay to the conservative legal icon is to embrace the constitution as written and allow the Senate to give a fair confirmation hearing to whoever President Obama nominates. After all, America’s preaching and prescribing of tenets of democracy anchored on the rule of law should be substantive. Rule of law cannot be rule of ideology.